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Moore v. Microsoft Corporation

Appellate Division of the Supreme Court of New York, Second Department
Apr 15, 2002
293 A.D.2d 587 (N.Y. App. Div. 2002)

Summary

holding a valid contract was formed where the user was required to click on a button labeled "I agree"

Summary of this case from Verizon Communications Inc. v. Pizzirani

Opinion

2001-05569

Submitted March 11, 2002.

April 15, 2002.

In an action, inter alia, to recover damages for deceptive trade practices, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated June 5, 2001, which granted the defendant's motion to dismiss the complaint.

Teddy Moore, Flushing, N.Y., appellant pro se.

Sullivan Cromwell, New York, N.Y. (William Dallas of counsel), and Montgomery, McCracken, Walker Rhoads, LLP, Philadelphia, Pa. (Charles B. Casper, Peter Breslauer, and Charles C. Sweedler of counsel), for respondent (one brief filed).

Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, LEO F. McGINITY, JJ.


ORDERED that the order is affirmed, with costs.

We agree with the Supreme Court that the End-User License Agreement (hereinafter the EULA) contained in the defendant's software program is a validly binding contract between the parties which bars the plaintiff's claims (see Brower v. Gateway 2000, 246 A.D.2d 246). The terms of the EULA were prominently displayed on the program user's computer screen before the software could be installed. Moreover, the program's user was required to indicate assent to the EULA by clicking on the "I agree" icon before proceeding with the download of the software. Thus, the defendant offered a contract that the plaintiff accepted by using the software after having an opportunity to read the license at leisure. As a result, the plaintiff's claims are barred by the clear disclaimers, waivers of liability, and limitations of remedies contained in the EULA (see ProCD, Inc. v. Zeidenberg, 86 F.3d 1447; Specht v. Netscape Communications Corp., 150 F. Supp.2d 585).

Moreover, the causes of action alleging violations of the General Business Law and deceptive trade practices were properly dismissed as barred by the terms of the EULA and for failure to state a cause of action. The elements of a claim alleging deceptive practices are that the act or practice was misleading in a material respect and that the plaintiff was injured as a result (see Hart v. Moore, 155 Misc.2d 203). The plaintiff failed to allege that the defendant engaged in a materially misleading practice and thus his deceptive trade practice claim fails to state a cause of action. Furthermore, there was no warranty given by the defendant that the software product was error free. Rather, the EULA specifically conformed to the requirements of the General Business Law and disclaimed all warranties, either express or implied. Consequently, the plaintiff's claim alleging statutory violations must fail (see Against Gravity Apparel v. Quarterdeck Corp., 267 A.D.2d 44; Scott v. Bell Atl. Corp., 282 A.D.2d 180).

The Supreme Court properly dismissed the plaintiff's cause of action alleging unjust enrichment. It is well settled that the existence of a valid and enforceable contract governing a particular subject matter, such as the EULA in the instant case, precludes recovery in quasi contract for events arising out of the same subject matter (see Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382).

The plaintiff failed to allege the existence of a special relationship between the parties. Therefore, his claim seeking an accounting must also fail (see Elghanian v. Elghanian, 277 A.D.2d 162; Kaminsky v. Kahn, 23 A.D.2d 231).

The plaintiff's remaining contentions are without merit.

SMITH, J.P., GOLDSTEIN, FRIEDMANN and McGINITY, JJ., concur.


Summaries of

Moore v. Microsoft Corporation

Appellate Division of the Supreme Court of New York, Second Department
Apr 15, 2002
293 A.D.2d 587 (N.Y. App. Div. 2002)

holding a valid contract was formed where the user was required to click on a button labeled "I agree"

Summary of this case from Verizon Communications Inc. v. Pizzirani

finding that, where terms of agreement contained in defendant's software program were "prominently displayed on the program user's computer screen before the software could be installed" and "the program's user was required to indicate assent to the [agreement] by clicking on the "`I agree' icon before proceeding with the download of the software," "the defendant offered a contract that the plaintiff accepted by using the software after having an opportunity to read the license at leisure"

Summary of this case from Bar-Ayal v. Time Warner Cable Inc.

affirming dismissal of a plaintiff's complaint when the allegedly defective software came with a user agreement that disclaimed all warranties and “there was no warranty given by the defendant that the software product was error free”

Summary of this case from In re Porsche Cars North America, Inc. Plastic Coolant Tubes Prods. Liab. Litig.

enforcing waiver of liability clause in click-through agreement

Summary of this case from Baidu, Inc. v. Register.com, Inc.

In Moore, the Second Department held that the plaintiff's unjust enrichment cause of action was precluded by his own valid and enforceable waiver of liability.

Summary of this case from Spirit Locker, Inc. v. Evo Direct, LLC
Case details for

Moore v. Microsoft Corporation

Case Details

Full title:TEDDY MOORE, appellant, v. MICROSOFT CORPORATION, respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 15, 2002

Citations

293 A.D.2d 587 (N.Y. App. Div. 2002)
741 N.Y.S.2d 91

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